The exclusion of a judge in the criminal procedure SK 66/13
“The ex lege exclusion of a judge is an exceptional measure. It constitutes a departure from the rule that every judge is authorised to adjudicate in a case falling within the scope of the jurisdiction of the court where s/he adjudicates,” stated the Constitutional Tribunal.
On 16 April 2015 at 9 a.m., the Constitutional Tribunal considered a constitutional complaint submitted by Mr D.N. with regard to the exclusion of a judge.
The Constitutional Tribunal adjudicated that Article 40(1)(7) of the Act of 6 June 1997 – the Code of Criminal Procedure, insofar as it did not provide for the ex lege exclusion of a judge from adjudicating again in appellate proceedings, if ‑ in a given case ‑ the judge participated in issuing a ruling that reverses a judgment issued in first-instance proceedings, was consistent with Article 45(1) of the Constitution.
The Constitutional Tribunal deemed that the lack of the obligation to exclude a judge ex lege in a situation where s/he participated in the reversal of a judgment in appellate proceedings and the referral of a given case for re-examination, and then – as a result of an appeal – s/he again adjudicates in the same case, falls within the ambit of the constitutionally guaranteed standard of the right to a fair trial.
The Tribunal stressed that the ex lege exclusion of a judge was an exceptional measure. It constitutes a departure from the rule that every judge is authorised to adjudicate in a case falling within the scope of the jurisdiction of the court where s/he adjudicates. The said departure should solely apply to extraordinary situations which clearly suggest that it is necessary to prevent a judge from being involved in a given case.
According to the Constitutional Tribunal, in the said procedural situation – in the light of the constitutional right to have one’s case examined by an impartial court – such a circumstance does not appear.
Pursuant to challenged Article 40(1)(7) of the Code of Criminal Procedure, “the judge is ex lege excluded from adjudicating in a case, if (…) s/he was involved in issuing a ruling that was reversed”. The essence of a ground for excluding a judge from proceedings concerning a given case, specified in Article 40(1)(7) of the Code of Criminal Procedure, is the exclusion of a judge, due to the fact that the judge has already issued a ruling in a given case, and thus s/he has a set opinion about the case and, consequently, might be influenced by his/her previous determination when re-examining the case.
The Tribunal stated that a given judge – participating in the first appellate proceedings which end in the reversal of a judgment issued by the court of first instance and the referral of the case for re-examination – does not, in principle, have a set opinion as to the involvement and guilt of the accused.
In the light of the binding provisions, the reversal of a judgment and the referral of a given case for re-examination occurs in the situation where, on the basis of evidence gathered by the court of first instance, a court of appeal may not issue a substantive ruling. When referring a case for re-examination, the court of appeal may not formulate suggestions as to the way of determining the facts of the case, the assessment of evidence as well as an approach adopted for the substantive determination of the case.
Hence, the judge definitely may not take a stance on the involvement or guilt of the accused. Any suggestions of that kind are not binding for the court of first instance. At the same time, when re-examining the case, the court of appeal verifies the accuracy of findings made by the court of first instance on the basis of supplemented evidence material.
At the same time, the Constitutional Tribunal pointed out that the lack of the possibility of excluding the judge ex lege in the said situation did not mean that the judge might not be excluded from adjudicating in the case. Indeed, if it is justified to doubt the impartiality of a judge, there are no obstacles to assess the situation from the point of view of Article 41(1) of the Code of Criminal Procedure.
The hearing was presided over by Judge Leon Kieres, and the Judge Rapporteur was Judge Maria Gintowt.
